United States District Court, D. Maryland
October 20, 2015.
Mia Mason, individually, and on behalf of all others
similarly situated, Plaintiff: Maria C Simon, LEAD ATTORNEY,
The Geller Law Group, PLLC, Fairfax, VA; Benjamin H Richman,
Courtney C Booth, PRO HAC VICE, Edelson PC, Chicago, IL.
Machine Zone, Inc., a Delaware corporation, Defendant: Thomas
Dallas McSorley, LEAD ATTORNEY, Arnold & Porter LLP,
Washington, DC; Allyson Tracey Himelfarb, Arnold & Porter,
Washington, DC; Michael A Berta, PRO HAC VICE, Arnold and
Porter LLP, San Francisco, CA; Sean Morris, PRO HAC VICE,
Arnold and Porter LLP, Los Angeles, CA.
K. Bredar, United States District Judge.
Mason (" Plaintiff" ) filed a Class Action
Complaint against Machine Zone, Inc. (" Defendant"
), producer of the popular Game of War: Fire Age
(" GoW " ) mobile video game. Plaintiff
alleges that aspects of GoW violate Cal. Penal Code
§ 330b; she seeks recovery under the California Unfair
Competition Law (" UCL" ), Cal. Bus. & Prof. Code
§ § 17200 et seq. ; a Maryland
loss-recovery statute, Md. Code Ann., Crim. Law §
12-110; and an equitable theory of unjust enrichment. Now
pending before the Court are Plaintiff's Motion for Class
Certification (ECF No. 2), Defendant's Request for
Judicial Notice (ECF No. 8), and Defendant's Motion to
Dismiss pursuant to Rule 12(b)(6) of the Federal Rules of
Civil Procedure (ECF No. 7).
surface, Plaintiff charges that Defendant trampled real and
important rights and interests of hers, wrongfully and
unlawfully, in an alternative, virtual world created by an
electronic game. But a careful probe beneath the
surface reveals a hodgepodge of hollow claims lacking
allegations of real-world harms or injuries. Perceived
unfairness in the operation and outcome of a game,
where there are no real-world losses, harms, or injuries,
does not and cannot give rise to the award of a
private monetary remedy by a real-world
court. Defendant's Motion to Dismiss will be
a Delaware corporation headquartered in California, operates
GoW, a " massively multiplayer" online
game available on Android and Apple iOS
devices. (ECF No. 1 ¶ 1.) GoW is a strategy
game played in real time; players construct a simulated
empire comprising resource plots, buildings, troops, and a
" hero." (ECF No. 7-2 at 2.) The object is to
coordinate with other players in strategic alliances so as,
ultimately, to " conquer the world." ( Id.
GoW is entirely free to play. (ECF No. 1 ¶ 19.)
However, some players, impatient for conquest, exercise an
option to purchase virtual " gold" to "
improve their virtual towns and hasten their advancement in
the game." ( Id. ¶ 2.) Defendant maintains
a digital " gold store" through which these players
acquire " gold" with real money at rates ranging
from $4.99 for 1200 pieces to $99.99 for 20,000 pieces. (
Id. ¶ 24.) Flush with simulated cash, some of
these players then proceed to the in-game "
Casino," where they purchase virtual " chips"
to wager on a virtual spinning wheel. ( Id. ¶
¶ 21-23.) After each spin, players receive a
virtual prize--ranging from an in-game " resource"
such as " wood" or " stone" (useful
elsewhere in the game) to additional chips or "
gold." ( Id. ¶ ¶ 28-29.) Plaintiff
alleges that the particular outcome of each spin is
predetermined by algorithms in the software and that players
are more likely to win " basic items" (
e.g., " wood" ) than valuable ones (
e.g., " gold" ). ( Id. ¶
¶ 30, 36.)
there is no real-dollar value attached to " gold,"
chips, or any Casino prizes. On the contrary, Defendant's
Terms of Service (" ToS" )--appended to
Plaintiff's Complaint--provide that " Virtual
Currency and Virtual Goods may never be redeemed for
'real world' money, goods or other items of monetary
value from [Defendant] or any other person" ; that
players receive a nontransferable " revocable license to
use the Virtual Goods and Virtual Currency" solely for
personal entertainment purposes; and that, aside from the
foregoing license, players have " no right, title, or
interest in or to any such Virtual Goods or Virtual
Currency." (ECF No. 1-2 at 9.)
the ToS expressly bar players from " buy[ing] or
sell[ing] any Virtual Currency or Virtual Goods outside the
Services or in exchange for 'real world' money or
items of value" ( id. at 10), Plaintiff alleges
that " players have created secondary markets to buy and
sell Game of War accounts" (ECF No 1 ¶ 37).
Plaintiff does not allege that Defendant hosts or sanctions
these secondary markets, nor does she allege that she has
ever sold or attempted to sell an account--nor even that she
intends to do so in the future.
downloaded GoW in early 2014; she began playing in
the Casino shortly after downloading the game. ( Id.
¶ 43.) Plaintiff alleges that, over the course of about
one year, she " lost more than $100 wagering at
Defendant's Casino." ( Id. ) A citizen of
Maryland, Plaintiff brought this action in diversity,
purporting to represent a nationwide class of players and a
subclass of Maryland players. Plaintiff alleges that the
Casino is an unlawful " slot machine or device"
under Cal. Penal Code § 330b; that Defendant has
violated California's UCL by owning and operating this
unlawful device, proximately causing Plaintiff and her class
economic damages; that Plaintiff and her class have conferred
a benefit upon Defendant that Defendant should not be
permitted to retain; and that Plaintiff and her subclass are
entitled to restitution under Maryland law.
moved to dismiss the Class Action Complaint on June 29, 2015.
(ECF No. 7.) Plaintiff filed a response in opposition on
August 13, 2015 (ECF No. 18), and Defendant replied on
September 10, 2015 (ECF No. 24).
complaint must contain " sufficient factual matter,
accepted as true, to 'state a claim to relief that is
plausible on its face.'" Ashcroft v. Iqbal,
556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009)
(quoting Bell A. Corp. v. Twombly, 550 U.S. 544,
570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). Facial
plausibility exists " when the plaintiff pleads factual
content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged." Id. at 678. An inference of a mere
possibility of misconduct is not sufficient to support a
plausible claim. Id. at 679. As the Twombly
opinion noted, " Factual allegations must be enough to
raise a right to relief above the speculative level."
550 U.S. at 555. " A pleading that offers 'labels
and conclusions' or 'a formulaic recitation of the
elements of a cause of action will not do.' Nor does a
complaint suffice if it tenders 'naked assertion[s]'
devoid of 'further factual enhancement.'"
Iqbal, 556 U.S. at 678 (alteration in original)
(quoting Twombly, 550 U.S. at 555, 557).
Cal. Penal Code § 330b (Count I)
Complaint, Plaintiff accuses Defendant of violating a
California statute criminalizing, inter alia, the
manufacture, ownership, or possession of a " slot
machine or device." (ECF No. 1 ¶ 53.) As Defendant
correctly observes in the memorandum accompanying its Motion
to Dismiss, the California Penal Code " does not provide
a private right of action entitling Plaintiff to sue under
it." (ECF No. 7-1 at 12.) And in her opposition
memorandum, Plaintiff clarifies that she does not intend to
raise Count I as a distinct theory of recovery. (ECF No. 18
at 13.) Thus, the Court has no difficulty dismissing Count I
for failure to state a claim.
dismissal does not, however, end the Court's inquiry.
Plaintiff's Count II (her California UCL claim) is
derivative of Count I: she bases her theory of UCL recovery
on the premise that GoW 's Casino function is an
unlawful " slot machine or device." Thus, in order
to properly interrogate Plaintiff's UCL theory, the Court
must consider the antecedent question whether the Casino
function violates California state law.
law defines a " slot machine or device" as a "
machine, apparatus, or device" that is operated by
insertion of a coin or other object " or by any
other means " and that " by reason of any
element of hazard or chance" grants the user any of the
following: (1) a " thing of value," (2) an "
additional chance or right to use the slot machine or
device," or (3) a token that may be exchanged for a
" thing of value." Cal. Penal Code § 330b(d)
Casino function appears to satisfy most of these elements.
While not operated by insertion of a physical coin, it is
certainly operated " by any other means," and there
is no dispute that--from the player's vantage point--the
spinning wheel involves chance rather than skill. Moreover,
while the virtual prizes that Casino players may win have no
real-world economic value, section 330b appears to encompass
purely in-game rewards. See, e.g., Trinkle v.
Stroh, 60 Cal.App.4th 771, 70 Cal.Rptr.2d 661 (Ct.App.
1997) (flipperless pinball machines that awarded credits for
free games, with better odds depending on how much money the
player paid in, constituted illegal slot machines); Score
Family Fun Ctr., Inc. v. Cnty. of San Diego, 225
Cal.App.3d 1217, 275 Cal.Rptr. 358 (Ct.App. 1990) (arcade
systems that rewarded gamers with points for extended play
were illegal slot machines). The Court assumes that virtual
prizes tending to advance gameplay are sufficiently analogous
to the credits and points awarded in Trinkle and
Score Family Fun so as to fit within the broad
parameters of section 330b--and Defendant does not appear to
dispute this contention.
does, however, vigorously dispute Plaintiff's assertion
that the Casino function is a " machine, apparatus, or
device." Rather, Defendant urges, it is " software
downloaded to an individual's Apple or Android
device," and there is " no cognizable reading of
Section 330b that would reach a software developer whose
software was only installed onto the devices of others."
(ECF No. 7-1 at 15-16.) Plaintiff responds with citations
to several cases in which California courts have found video
gaming and digital sweepstakes systems to violate section
330b, but in each of these cases the systems at issue
included elements of both software and hardware.
See, e.g., People ex rel. Green v. Grewal,
61 Cal.4th 544, 189 Cal.Rptr.3d 686, 352 P.3d 275 (Cal. 2015)
(integrated Internet café systems, through which
customers swiped magnetic cards or entered numbers at
computer terminals to play casino-style sweepstakes games,
violated section 330b); People ex rel. Lockyer v. Pac.
Gaming Techs., 82 Cal.App.4th 699, 98 Cal.Rptr.2d 400
(Ct.App. 2000) (phone card vending machines that paid out
periodic cash prizes violated section 330b);
Trinkle, 60 Cal.App.4th 771, 70 Cal.Rptr.2d 661
(jukeboxes that played music and afforded users a chance to
win a money jackpot violated section 330b).
the most natural reading of the phrase " machine,
apparatus, or device" calls to mind a piece of
equipment, just as the phrase " slot machine" calls
to mind a physical terminal with movable parts and flashing
lights. This natural reading is supported by
linguistic authorities. See Black's Law
Dictionary (10th ed. 2014) (defining device as
a " mechanical invention" that may be " an
apparatus or an article of manufacture" and
machine as a " device or apparatus consisting
of fixed and moving parts that work together to perform some
California precedent directing the Court to construe "
machine, apparatus, or device" as encompassing software
in and of itself, and guided by the principle that "
unless there is some ambiguity in the language of a statute,
a court's analysis must end with the statute's plain
language," Hillman v. IRS, 263 F.3d 338, 342
(4th Cir. 2001), the Court concludes that Defendant's